Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. SCN224307 K. Michael Kirkman, Judge, and a petition for writ of habeas corpus. Order affirmed; petition denied.
BENKE, Acting P. J.
Appellant Fernando F. Velarde contends he received ineffective assistance of counsel that led to his plea of guilty and sentence of probation. Velarde appeals the trial court's order denying his motion to withdraw his plea, and separately petitions for a writ of habeas corpus. The direct appeal and the writ are consolidated for disposition.
As we explain, we conclude his trial counsel's performance was not deficient and, in any event, Velarde was not prejudiced even assuming his counsel's performance fell below an objective standard of reasonableness. We therefore affirm the trial court's order denying his motion to withdraw his plea and deny his writ petition.
FACTUAL AND PROCEDURAL BACKGROUND
Certain portions of the factual and procedural history related to Velarde's claim of ineffective assistance of counsel are discussed post. In addition, like the parties, we rely on Velarde's probation report for some of the facts in this summary.
In late January 2007, United States Border Patrol agents stopped Velarde in his vehicle at the San Clemente traffic checkpoint. Because Velarde appeared nervous, agents directed him to "secondary inspection." Agents again noticed Velarde appeared nervous when he pulled over on the shoulder in front of the secondary inspection site, exited his car and started towards the trunk of his car. Agents instructed him to get back in his vehicle and proceed into secondary inspection. There, agents again saw Velarde exhibit nervous behavior including trembling hands.
Velarde consented to a canine inspection. The canine alerted to the front passenger seat area. Agents found 13 rounds of.45 caliber ammunition in the center console, a loaded magazine with seven more rounds of the same ammunition in the glove compartment, an unloaded handgun under the front passenger seat and four small bags that contained a total of 5.5 ounces, or 254.8 grams, of cocaine, of which about 107.1 grams was pure. Agents also found $531 in cash on Velarde.
Velarde told agents the gun and drugs did not belong to him, but instead belonged to an individual he had met months earlier at a party in Tijuana, Mexico. Velarde said this individual had called him a few days earlier and had asked to meet him at a car wash in Chula Vista. Velarde agreed. At the car wash, the individual asked Velarde to hold the gun and "some cocaine" for him because he was traveling to Mexico. Velarde again agreed and put the gun and cocaine in his car and left them there.
Velarde told the agents that a few days later the individual called him, said he had returned from Mexico and asked Velarde to bring the gun and drugs to Los Angeles the following day. Because Velarde often traveled to Los Angeles for business, he agreed, and was headed to Los Angeles on the day he was detained and arrested at the checkpoint. Velarde told the agents he was to call the individual for directions as he approached downtown Los Angeles. Velarde said he did not have an address for the individual, but did have the individual's cell phone number.
In a subsequent interview conducted in early October 2007, Velarde said the individual that gave him the drugs and gun was the brother of a friend of his from Mexico. Velarde said the individual stopped by Velarde's house and asked if he could leave a bag with him. Velarde agreed, although he knew the bag contained drugs and a gun. Because Velarde said he had never been around drugs before, he was unaware the bag contained a significant quantity of drugs. The individual told Velarde he would return later that day to pick up the contraband.
Velarde waited three days for the individual to return. When he did not, Velarde called the individual and told him he did not want to keep the contraband any longer. According to Velarde, the individual claimed he had come back from Mexico late in the evening on the day he left the bag with Velarde containing the drugs, gun and ammunition, and because he did not want to disturb Velarde and his family, he returned to the Los Angeles area without the bag. Velarde agreed to return the gun and drugs to the individual in Los Angeles because Velarde needed to drive there to purchase business supplies.
DISCUSSION
A. Ineffective Assistance of Counsel—Factual Background
The evidence presented at the plea withdrawal hearing established that Velarde hired attorney Mahir Sherif for his criminal case and the immigration case that might follow. Sherif had some experience in immigration law, and his sister Rhoda Sherif, with whom he shared office space, practiced immigration law exclusively.
The record shows neither Sherif nor his sister handled Velarde's immigration matter.
Sherif testified at the plea withdrawal hearing that he visited Velarde at least four times while Velarde was in state custody. However, Aurora Bewicke, and not Sherif, handled Velarde's plea negotiation and appeared on his behalf at the plea hearing. Bewicke was admitted to practice law in California in December 2006. Sherif testified he employed and supervised Bewicke, and she made appearances on Velarde's case as well as other cases Sherif assigned her. Bewicke worked for Sherif for about two years. He described her as "meticulous," opined she had done an excellent job on Velarde's case and based upon his review of the file, he concluded the immigration consequences of Velarde's plea were "never out of her mind."
There is information in the record suggesting Bewicke made the court appearances because Sherif was ill, but that is not clear, nor particularly relevant to our analysis.
Sherif testified Bewicke consulted with him and prepared memoranda regarding Velarde's case, but he also expected her to exercise her own independent judgment, which Sherif considered part of her job as a licensed attorney in California. Sherif noted from the file, including from a memorandum prepared by Bewicke dated September 20, 2007—the same day Velarde entered his plea—that Bewicke unsuccessfully attempted to convince the prosecutor to reduce the plea offer to simple possession, as opposed to possession for sale or transportation of a controlled substance (count 2). Bewicke noted the prosecutor initially insisted on requiring Velarde to serve four years in custody, but she convinced the prosecutor to offer 364 days with a suspended sentence of four years.
In her September 20, 2007 memorandum to Sherif, Bewicke confirmed she told Velarde it was going to be "very[,] very difficult immigration-wise" for him in light of his plea, but that she made sure there were "some aspects of the plea agreement that would give him a fighting chance" with immigration. Specifically, she made sure the plea form used the term "controlled substance" and not "cocaine" because, she noted, in her experience "there have been some cases where [defendants] won on the broadness of the state statute regarding 'controlled substance' versus the actual substance." She also made sure the plea used the term "knowledge" that the "controlled substance" would be sold, as opposed to intent to sell, as a further attempt to help Velarde immigration-wise. Despite such measures, Bewicke wrote that she reiterated to Velarde his chances of avoiding deportation as a result of the plea were "extremely slim," but that the alternatives "all carry just as bad consequences for immigration and at least he will get out [of jail] sooner."
In addition, in subsequent correspondence with Linda Pollack, Velarde's counsel who represented him at the hearing on his motion to withdraw his plea, Bewicke indicated she told Velarde several times that it was his decision whether to go to trial or take the plea, that at "every point" she told Velarde he "most likely would be deported, but at least [if he took the plea] he would spend less time in custody," that she went over the waivers on the plea form with Velarde and gave him the chance to ask questions and that the court also went over the waivers on the plea form.
Sherif testified that he also personally told Velarde he had the option to go to trial if he chose not to accept the plea offer, that if Velarde went to trial, he likely would lose based on the facts of his case and that if he lost, he likely would be subject to a lengthy prison sentence. Sherif noted that Velarde unfortunately was "caught between a rock and a hard place" and that in his opinion, Velarde chose the "lesser of [two] evils" when he accepted the plea offer.
Sherif testified that with an aggravated felony, it was "pretty much true" that Velarde had no hope of remaining in the United States. He noted, however, that while the law requiring deportation to Mexico was "clear," in his experience with immigration matters deportation was not certain. Sherif testified that from the very beginning of his representation of Velarde, the immigration consequences were a key issue in the case.
B. Governing Law
A guilty plea may be withdrawn before judgment for good cause shown by clear and convincing evidence. (Pen. Code, § 1018 ; People v. Cruz (1974) 12 Cal.3d 562, 566.) A defendant may show good cause under Penal Code section 1018 by demonstrating he or she received ineffective assistance of counsel. (In re Alvernaz (1992) 2 Cal.4th 924, 934.)
Penal Code section 1018 provides in part: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may, and in case of a defendant who appeared without counsel at the time of the plea the court shall, for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted."
" ' "In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it 'fell below an objective standard of reasonableness [¶]... under prevailing professional norms.' [Citations.] Unless a defendant establishes the contrary, we shall presume that 'counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy.' [Citation.]... If a defendant meets the burden of establishing that counsel's performance was deficient, [second] he or she also must show that counsel's deficiencies resulted in prejudice, that is, a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" ' [Citation.]" (People v. Salcido (2008) 44 Cal.4th 93, 170.)
Thus, "A meritorious claim of constitutionally ineffective assistance must establish both: '(1) that counsel's representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, a determination more favorable to defendant would have resulted. [Citations.] If the defendant makes an insufficient showing on either one of these components, the ineffective assistance claim fails.' " (People v. Holt (1997) 15 Cal.4th 619, 703, quoting People v. Rodrigues (1994) 8 Cal.4th 1060, 1126[because ineffective assistance of counsel fails on an insufficient showing of either element, a court need not decide the issue of counsel's alleged deficiencies before deciding if prejudice occurred]; see also Strickland v. Washington (1984) 466 U.S. 668, 687 [104 S.Ct. 2052].)
" ' "Reviewing courts defer to counsel's reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' " ' [Citations.]" (People v. Jones (2003) 29 Cal.4th 1229, 1254.) " 'In determining whether counsel's performance was deficient, a court must in general exercise deferential scrutiny [citation].' " (People v. Brodit (1998) 61 Cal.App.4th 1312, 1335, quoting People v. Ledesma (1987) 43 Cal.3d 171, 216.) " 'Although deference is not abdication... [,] courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight.' " (People v. Brodit, supra, at p. 1335, quoting People v. Scott (1997) 15 Cal.4th 1188, 1212.)
C. Denial of Motion to Withdraw and Analysis
In both his direct appeal and writ petition, Velarde claims defense counsel was ineffective because counsel advised Velarde he had a slim chance of not being deported if he plead guilty to possession of base cocaine for sale, an aggravated felony, when the law in fact required that he be deported. To support his contention, Velarde submitted in his petition the expert testimony of Dario Aguirre and a record from the United States Border Patrol showing he was subject to an immigration hold dating back to the date of his arrest.
At the hearing on the motion to withdraw the plea, the court heard the testimony of Sherif, Velarde and Noelia Soto, Velarde's common law wife of 18 years. The trial court noted, and we independently agree, that Velarde received a very significant benefit when he pled guilty here—a stayed prison term of four years and credit for time served. We also agree with the trial court's observation that defense counsel "did well" to procure this benefit from the prosecution, in light of the seriousness of the charges Velarde faced and the potential that he could serve up to 10 years in state prison on count 1 alone.
Indeed, the court noted Velarde's case was a presumptive state prison case based on the quantity of drugs in Velarde's possession, which it further noted was more than five times the amount of drugs that ordinarily qualifies a defendant for state prison. The court commented it could not "recall seeing a case involving 254 grams that didn't result in a state prison commitment. [¶] So it seems to me that Mr. Sherif's firm did a good job of avoiding a state prison commitment, despite the allegation that made this a presumptive state prison matter, given the quantity...."
The court further noted, and we agree, that the testimony of Sherif and the written memoranda prepared by Bewicke to Sherif show the prosecutor was steadfast in the requirement that Velarde plead guilty to count 1 of the information and that Velarde received yet another significant benefit when the prosecutor allowed him to admit to a firearm enhancement under Penal Code section 12011, subdivision (a), which increases punishment by one year, as opposed to the enhancement codified in subdivision (c) of that same statute, which increases punishment by three, four or five years if a defendant is in possession of a firearm while in violation of Health and Safety Code section 11351.5, among other statutes.
The trial court found it was "clear" that if this case had gone to trial "there was a very real likelihood, in fact, [a] probability that the defendant would have been convicted of each of these [three] charges. There was virtually no defense here, given that he's in the car, he's operating it, [and] a significant quantity of drugs" was found in his possession and he admitted to knowledge of the existence of the drugs and the gun. Thus, while simple possession may have been the goal for Velarde in a plea, the court noted that goal "was an entirely, completely, without question, unrealistic goal, given the facts of the case. The district attorney's office would never offer, under any circumstances, a straight possession, given facts like those that exist in this case."
The trial court recognized that reducing Velarde's potential exposure in state prison "had to be first and foremost the concern of defense counsel." Thus, Velarde "had the option of either going to trial, probably losing and serving an almost certain significant prison term, again, mindful this was a presumptive state prison matter, or getting probation up front with the hope that an immigration judge would deviate from the law." The court noted that in its experience, where a large quantity of drugs was involved such as in Velarde's case, the district attorney requires a plea either to possession for sale or if an actual sale was made, then to the sale.
The court found, and this court independently finds, "compelling" evidence that Bewicke considered and focused on Velarde's immigration issues when advising him on, and in connection with, his plea, and that she independently advised Velarde he had a slim chance of avoiding deportation if he accepted the plea. The court found that Velarde had his "back against the wall" and had extremely limited options in connection with his case, that it was unfortunate that Velarde made the choices he made, but that it was neither the trial court's doing nor his trial counsel's doing that led to this difficult situation for him and his family.
The record also shows that Sherif told Velarde he would be deported if he took the plea, and that Velarde told Sherif that prior counsel had also given Velarde that same advice.
The trial court further noted, and our review of the record establishes, the trial court independently advised Velarde that if he accepted the plea he would in fact be deported. This warning was confirmed in the plea form Velarde signed and initialed. The court also found Velarde held out some slim hope that the immigration judge "would exercise some flexibility and decide [his] matter based upon equity rather than law," or that perhaps the immigration hold against him would be lifted simply because of clerical error or the like. The court noted that in its experience such errors can happen, even if the law was clear, which justified defense counsel's view that Velarde had at least a slim chance of not being deported if he took the plea.
This issue is discussed post in connection with the prejudice prong of ineffective assistance of counsel.
We agree with the trial court that if the motion to withdraw the plea was granted and Velarde went to trial, based on the facts of his case that "would be a very, very bad decision," as Velarde most likely would be convicted of violations of Health and Safety Code section 11351.5 (possession of cocaine base for sale) and Penal Code section 12022, subdivision (c) (possession of a firearm in the commission of a violation of Health and Safety Code section 11351.5), face a lengthy prison term and then be deported. In light of the difficult circumstances Velarde faced at the time he entered his plea, and defense counsel's awareness of those circumstances and their attempts to minimize them, as shown in the record, we conclude Velarde did not satisfy his burden of demonstrating that his counsel's performance was deficient. (See People v. Salcido, supra, 44 Cal.4th at p. 170.)
The fact Velarde claimed neither the drugs nor gun belonged to him (although he did not say anything about the money in his possession), does not mean the jury, if he had gone to trial, would believe him and acquit him or convict him of the lesser charge of simple possession. Under the facts of this case, there was a substantial likelihood the jury would not believe Velarde's story about meeting a friend's brother (e.g., a stranger) at a car wash, or at Velarde's house, agreeing to hold drugs, a gun and ammunition for the stranger for at least three days and then agreeing to drive the contraband to Los Angeles for the stranger. (See People v. Barnes (1986) 42 Cal.3d 284, 303 [it is the jury's role to determine the credibility of witnesses and the truth or falsity of facts upon which a determination depends].)
D. Velarde was not Prejudiced in any Event
Even if we were to conclude that defense counsel's performance was somehow deficient, we nonetheless would affirm the denial of his motion to withdraw his guilty plea because we also conclude Velarde did not establish that counsel's deficiencies prejudiced him. (See People v. Salcido, supra, 44 Cal.4th at p. 170.) To establish prejudice, Velarde was required to show a " 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' [Citation.]" (Ibid.)
Here, the record shows that when Velarde pled guilty to count 1, possession of cocaine base for sale (Health & Saf. Code, § 11351.5), he signed and initialed a plea of guilty form that provided, among other things: "I understand that if I am not a U.S. citizen, this plea... mayresult in my removal/deportation, exclusion from admission to the U.S. and denial of naturalization. Additionally, if this plea is to an 'Aggravated Felony' listed on the back of this form, then I will be deported, excluded from admission to the U.S., and denied naturalization." The word "may" in the first sentence was crossed out and the word "will" was handwritten over it. The plea form indicated an aggravated felony included "felony possession of any controlled substance" and "possession for sale of any controlled substance."
Before the trial court accepted his change of plea, it questioned Velarde extensively. Velarde indicated to the court he had signed and initialed the plea, as required. After further questioning, the court recessed the hearing to give Velarde additional time to meet with defense counsel to ensure all his questions concerning the plea were answered.
After the recess, Velarde, who was sworn as a witness, told the court that during the recess defense counsel had answered all of his questions and he believed it was in his best interest to plead guilty. The court noted the plea agreement reached by the parties, which it summarized as follows:
"If you [Velarde] plead guilty to count one, a violation of Health and Safety Code section 11351.5, [and] if you admit a [Penal Code section] 12022 [, subdivision] (a)(1) allegation [related to the gun], it adds a year to count one as a possibility. The prosecution agrees that the balance [of the charges] would be dismissed against you. They agree also that at the time of sentencing that the court should suspend a four-year prison term, and understanding the court would give you credit for time-served at the time of sentencing."
Velarde confirmed for the court this was the plea and that there had been no other promises or agreements influencing his decision to plead guilty. After asking Velarde a series of questions to ensure he understood the rights he was giving up by entering a plea of guilty, including the right to a jury trial, to confront and cross-examine witnesses and the right against self incrimination, the court informed Velarde the guilty plea could be used for many purposes and would result in his deportation:
"THE COURT: Now, sir, the case can be used against you for many purposes. If not a citizen in the country, it will result in removal, deportation or exclusion from admission into the United States and denial of naturalization. Is that understood?
"[Velarde]: Yes."
The court found Velarde knowingly and voluntarily agreed to plead guilty, and observed: "It does appear to me that [Velarde] is in full possession of his facilities. I believe that he understands the nature of the charges as well as the consequences of entering a plea here today. The court has been provided with an adequate factual basis. [Velarde] has knowingly, willingly, voluntarily, expressly, and explicitly waived each of his rights."
Velarde admitted he "unlawfully possessed [a] controlled substance in a useable quantity with the knowledge it would be sold and [he] possessed an unloaded firearm during the commission of a felony." Velarde declared under penalty of perjury that he read, understood and initialed each item in the plea form (including line 7d, which described for him the immigration consequences of his plea) and "everything on the form... is true and correct."
At the court's invitation, defense counsel agreed with and joined in the waiver of Velarde's rights and entry of his guilty plea. Defense counsel also signed the plea form, after the attorney's statement, which provided as follows:
"I, the attorney for the defendant in the above-entitled case, personally read and explained to the defendant the entire contents of this plea form and any addendum thereto. I discussed all charges and possible defenses with the defendant, and the consequences of this plea, including any immigration consequences. I personally observed the defendant fill in and initial each item, or read and initial each item to acknowledge his/her understanding and waivers. I observed the defendant date and sign this form and any addendum. I concur in the defendant's plea and waiver of constitutional rights." (Italics added.)
Despite Velarde's contention that defense counsel misinformed him regarding the immigration consequences of his plea, the record shows Velarde was fully informed of those consequences by the trial court, when it questioned Velarde after he was sworn as a witness and ensured he understood that if he plead guilty to count 1, he would in fact be deported. The court's questioning came after the court recessed the hearing to give Velarde additional time to talk to defense counsel about the plea. Velarde also signed the change of plea form, which confirmed he would be deported because he was pleading guilty to an aggravated felony.
Thus, even assuming Velarde's counsel misinformed him about the immigration consequences of his plea, that misinformation did not prejudice Velarde in light of the clear and unequivocal information he independently received from the trial court and the plea form regarding the immigration consequences of his plea. We therefore conclude Velarde cannot show a reasonable probability that, but for his counsel's alleged misinformation, the result of the proceeding would have been different. (See People v. Salcido, supra, 44 Cal.4th at p. 170.)
DISPOSITION
This is an unfortunate case. Nonetheless, we affirm the order denying Velarde's motion to withdraw his plea and deny his petition for a writ of habeas corpus.
WE CONCUR: O'ROURKE, J., IRION, J.